Scott W. Morris v. State of Indiana (mem. dec.) ( 2019 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any May 22 2019, 6:07 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Jerry T. Drook Curtis T. Hill, Jr.
Grant County Public Defender Attorney General of Indiana
Marion, Indiana
Samantha M. Sumcad
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Scott W. Morris, May 22, 2019
Appellant-Defendant, Court of Appeals Case No.
18A-CR-2645
v. Appeal from the Grant Superior
Court
State of Indiana, The Honorable Jeffrey D. Todd,
Appellee-Plaintiff. Judge
Trial Court Cause No.
27D01-1401-FB-1
Sharpnack, Senior Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2645 | May 22, 2019 Page 1 of 6
Statement of the Case
[1] Scott Morris appeals his conviction of criminal deviate conduct, a Class B
1
felony. We affirm.
Issue
[2] Morris presents one issue for our review, which we restate as: whether the trial
court erred by admitting certain testimony under the excited utterance
exception to the hearsay rule.
Facts and Procedural History
[3] In November 2013, Morris was employed at the Marion VA Medical Center as
a nursing assistant. One of the patients under his care was an adult male whose
health conditions had rendered him mentally incompetent. One evening while
Morris was at work, Nurse Brumley entered the patient’s room and saw Morris
performing oral sex on the patient. Nurse Brumley told another nurse, Nurse
Dillard, what she had seen, reported the incident to the head nurse on duty, and
made a written report of the incident. Based upon this event, Morris was
charged with criminal deviate conduct.
[4] Morris’ first trial resulted in a mistrial due to a hung jury. At his second trial,
over Morris’ objection, Nurse Dillard was allowed to testify to what Nurse
Brumley told her she had seen. Morris was found guilty as charged, and the
1
Ind. Code § 35-42-4-2 (1998).
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2645 | May 22, 2019 Page 2 of 6
court sentenced him to sixteen years with two years suspended to supervised
probation.
Discussion and Decision
[5] Morris contends the trial court erred by admitting Nurse Dillard’s testimony
under the excited utterance exception because Nurse Brumley made the
statements to Nurse Dillard after she had calmed down and was no longer
under the stress and excitement of the event.
[6] The trial court’s ruling on the admission or exclusion of evidence is reviewed
for an abuse of discretion. Cherry v. State, 57 N.E.3d 867, 875 (Ind. Ct. App.
2016), trans. denied. An abuse of discretion occurs when a decision is clearly
against the logic and effect of the facts and circumstances before the court. Paul
v. State, 971 N.E.2d 172, 175 (Ind. Ct. App. 2012). Error in the admission of
evidence will prevail on appeal only if it affects the substantial rights of a party.
Carter v. State, 31 N.E.3d 17, 28 (Ind. Ct. App. 2015), trans. denied. To
determine whether a party’s substantial rights have been affected, we consider
the probable impact of the evidence on the fact finder. Remy v. State, 17 N.E.3d
396, 401 (Ind. Ct. App. 2014), trans. denied. The improper admission of
evidence is harmless error “‘if the conviction is supported by substantial
independent evidence of guilt satisfying the reviewing court there is no
substantial likelihood the challenged evidence contributed to the conviction.’”
Id. (quoting Hoglund v. State, 962 N.E.2d 1230, 1238 (Ind. 2012)).
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2645 | May 22, 2019 Page 3 of 6
[7] The challenged testimony is hearsay under Indiana Evidence Rule 801.
Hearsay is an out-of-court statement offered to prove the truth of the matter
asserted, and it is inadmissible unless it falls under an exception. Evid. R. 801,
802. One exception to the rule against hearsay is an excited utterance, which is
defined as “[a] statement relating to a startling event or condition, made while
the declarant was under the stress of excitement that it caused.” Evid. R.
803(2).
[8] To satisfy the excited utterance exception, three elements must be present: (1)
the occurrence of a startling event or condition; (2) the declarant has made a
statement while under the stress or excitement caused by the event or condition;
and (3) the statement was related to the event or condition. Young v. State, 980
N.E.2d 412, 421 (Ind. Ct. App. 2012). This test is not to be applied in a
perfunctory manner; rather, admissibility of evidence under this hearsay
exception turns on whether the statement was inherently reliable because the
witness was under the stress of the event and unlikely to make deliberate
falsifications. Id. The crux of the inquiry is whether the declarant was
incapable of thoughtful reflection. Id. “‘Although the amount of time that has
passed is not dispositive, a statement that is made long after the startling event
is usually less likely to be an excited utterance.’” Sandefur v. State, 945 N.E.2d
785, 788 (Ind. Ct. App. 2011) (quoting Boatner v. State, 934 N.E.2d 184, 186
(Ind. Ct. App. 2010)).
[9] In this case, neither party contests whether there was a startling event or
whether the statement related to the event. The issue is whether Nurse
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2645 | May 22, 2019 Page 4 of 6
Brumley’s statements to Nurse Dillard were made while Nurse Brumley was
under the stress or excitement caused by the event. Morris asserts a fifteen-
minute period between the incident and Nurse Brumley’s statements to Nurse
Dillard gave Nurse Brumley time to “calm down and reflect,” thereby making
her statements to Nurse Dillard unreliable. Appellant’s Br. p. 17.
[10] A close reading of the record indicates that it was less than fifteen minutes
between the startling event witnessed by Nurse Brumley and her relating the
details of the event to Nurse Dillard. Nevertheless, even assuming it was fifteen
minutes as suggested by Morris, we note that the amount of time that has
passed between the event and the statement is not dispositive. See Sandefur, 945
N.E.2d at 788.
[11] Nurse Brumley testified that when she witnessed Morris’ act, she experienced
“shock” and “fear.” Tr. Vol. 1, p. 50. She testified that she was so shaken that
she exited the room and “took off runnin’ down the hall.” Id. at 52. She said
the event “freaked [her] out” and that she “was in a panic” and “was scared.”
Id. at 50, 55. A few minutes later, when Nurse Brumley relayed to Nurse
Dillard what she had seen, “she was trembling, and she was white as a sheet.”
Tr. Vol. 2, p. 30. Nurse Dillard further testified regarding Nurse Brumley’s
demeanor: “You know when someone is scared and their eyes are wide
opened, I could see the whites of her eyes, and her [sic], she was pale.” Id. In
determining whether a statement is an excited utterance, courts of this State
have considered the declarant’s crying, injury, or exhibition of other physical or
psychological conditions that indicate stress. See Young, 980 N.E.2d at 421
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2645 | May 22, 2019 Page 5 of 6
(citing Fowler v. State, 829 N.E.2d 459, 463-64 (Ind. 2005)). The evidence in this
case makes it clear that Nurse Brumley had just witnessed a very disturbing
scene, and, while still in shock, she told Nurse Dillard exactly what she had
seen. The trial court did not abuse its discretion when it admitted Nurse
Dillard’s testimony of Nurse Brumley’s statements.
[12] Moreover, even assuming it was error for the court to admit Nurse Dillard’s
testimony, the error was harmless. The admission of hearsay is not necessarily
grounds for reversal, especially where it is merely cumulative of other evidence
admitted. Newbill v. State, 884 N.E.2d 383, 397 (Ind. Ct. App. 2008), trans.
denied. Prior to Nurse Dillard testifying, Nurse Brumley testified to exactly
what she saw Morris doing. Consequently, Nurse Dillard’s testimony was
cumulative evidence, and any error stemming therefrom is harmless.
Conclusion
[13] For the reasons stated, we conclude the trial court did not abuse its discretion
by admitting Nurse Dillard’s testimony of Nurse Brumley’s statements under
the excited utterance exception to hearsay.
[14] Affirmed.
Baker, J., and Bradford, J., concur.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2645 | May 22, 2019 Page 6 of 6